LGBT staff and service users and the Equality Act 2010

Chris Payne looks at how to achieve compliance with the Equality Act 2010 with reference to issues of sexual orientation and gender identity.

A prominent feature of the revised Key Lines of Enquiry (KLOE), which inspectors are using from November 2017 to make their assessments against the fundamental standards, and to award quality ratings, is the increased emphasis on equality and diversity issues. The original KLOE contained broad statements about equality and diversity legislation, but did not refer directly to the Equality Act 2010 (though the fundamental standards do). Likewise, the ratings characteristics offer only one or two general statements, reflecting, for example, how a good well-led service will have “a clear vision and set of values that include honesty, involvement, compassion, dignity, independence, respect, equality, and safety”, which are shared, regularly reviewed and consistently put into practice.

The revised KLOE refers to the Equality Act in several places, for example.

  • Safe (S1.3): How are people protected from discrimination, which might amount to abuse or cause psychological harm? This includes harassment and discrimination in relation to protected characteristics under the Equality Act.

  • Effective (E1.2): What processes are in place to ensure there is no discrimination, including in relation to protected characteristics under the Equality Act, when making care and support decisions?

  • Caring (C1.3): Do staff seek accessible ways to communicate with people when their protected and other characteristics under the Equality Act make this necessary to reduce or remove barriers? And, (C3.4) how does the service take people’s preferences and needs and their protected and other characteristics under the Equality Act into account when scheduling staff?

  • Responsive (R1.2): How does the service make sure that a person’s care plan fully reflects their physical, mental, emotional and social needs, including on the grounds of protected characteristics under the Equality Act? R1.3 also asks if people receiving end-of-life care have their “protected equality characteristics considered in their care and treatment”.

  • Well-led (1.6): Does the service have, and keep under review, a clear vision and a set of values that includes a person-centred culture, involvement, compassion, dignity, independence, respect, equality, wellbeing and safety?

Developing an “equality culture”

The model sought by the Care Quality Commission (CQC) is based on the development of a service culture, inspired by positive leadership, that ensures everyone is treated equally without discrimination because of their — to cite the protected characteristics of the Equality Act — age, disability, gender reassignment, marriage or civil partnership, race, religion or belief, sex and sexual orientation. Treating people equally, however, does not mean “treating everyone the same”, because everyone is different and individual differences must also be fully considered. Thus, an outstanding service will be one that “understands the needs of different people and groups of people, and delivers care and support in a way that meets these needs and promotes equality”. (See rating characteristics for Responsive.)

A “culture” is represented by how people behave and relate to one another in line with both formal and informal rules. All care services will have formal rules to promote equality and diversity, as in their policies and procedures and codes of conduct, which management enforces. However, often more powerful in the service culture are the informal rules or customs and conventions, and these can often develop outside of management control and influence (as for example, was found in the notorious Winterbourne Hospital situation). To develop a culture based on equality and zero discrimination requires, among other things:

  • committed leadership that leads by example

  • in-depth staff training that includes in-depth examination of people’s assumptions and prejudices about individual differences

  • continuous staff support and supervision that includes feedback on people’s behaviour and practice

  • an encouragement and willingness for staff to question and challenge their colleagues’ and other people’s discriminatory attitudes and behaviour

  • a code that determines acceptable and unacceptable, ie discriminatory language to describe and discuss people with protected equality characteristics and matters regarding these.

This last requirement is important because many discriminatory remarks are passed casually often without any awareness of the harm or offence they incur, or of the impact on the person or persons to whom they might refer. For example, people who describe their sexuality in terms of being lesbian, gay, bisexual or transgender (LGBT), and who are protected under the Equality Act 2010 are often the butt of negative language. Research commissioned by Stonewall (see Unhealthy Attitudes, Stonewall 2015) reported frequent use by health and care staff of negative terms like “dyke” and “poofter” to describe LGBT people, and of providing poorer treatment to people because of their sexual orientation, or because they were transgender.

A care service that allows or ignores the use of disrespectful language and attitudes, which clearly contravenes the letter and spirit of the Equality Act can expect to be downrated by the CQC. Ratings characteristics for “requiring improvement” include: “people’s preferences in relation to equality and diversity may not always be treated with respect”, and, for inadequate, “protected equality characteristics are not recognised or respected, and equality is not promoted”. On the other hand, the outstanding service will be one, where “staff respond and go the extra mile to address people’s needs in relation to protected equality characteristics”.

Person-centred care for LGBT people

There is limited information about how LGBT people fare in the care system. Numerically they are in a minority, as they are in the population at large, though, with changing social attitudes, the demand for services as LGBT users is likely to increase. This makes it even more important to understand their needs as users of social care services, particularly as they grow older. What little is known suggests the following.

First, as service users, LGBT people must feel confident that they will not be stigmatised for their sexuality or subject to verbal and even physical abuse. The fear and risk of being bullied and harassed is one reason for a person keeping their sexuality secret, which increases their sense of isolation, and possibly, reticence to form good relationships with their carers. The sense of isolation is likely to increase if people move into a care home, for example, where they might be cut off from their culture and lifestyle. The sense of feeling different is also likely to increase by the prevailing culture of a care home that assumes its residents will be heterosexual and have led a heterosexual lifestyle.

Second, it is important that care providers do not make assumptions about the care needs of an LGBT user without reference to the person’s own views and feelings — and without checking the facts. Many needs will be common to other service users, but some might be different. Person-centred care is based on the idea that care needs should never be presumed, but are unique to the individual concerned. These must be identified with the person’s involvement, in the course of which, in the cases of LGBT service users, some of the myths and stereotypes about being LGBT can be dispelled. This is particularly important for people who have changed gender, or who are in the process of changing their gender, since it is only they who can communicate how they want other people to perceive and relate to them.

Third, it is important to treat LGBT users’ partners with respect and accord equal status, as to any spouse. To do otherwise is to contravene the Equality Act, but Unhealthy Attitudes reports several examples of how partners can be treated as second class citizens, often referred to as “friends”, whose rights to be involved in their partner’s care and treatment are ignored by the providers; despite the user’s wishes. It follows that if there any issues about the mental capacity of the service user, the partner will need to be fully involved in the assessments and any best interests’ decision-making required. Same sex partners’ rights should be included in the staff training.

Fourth, care staff must be confident and comfortable in their abilities to meet an LGBT person’s care needs by developing their understanding of them and overcoming any anxieties they might have, often because of their prejudices and stereotypical views. This is where training to challenge people’s assumptions, prejudices and stereotypes is important. Also, LGBT people often suffer themselves from anxiety, depression and mental health, so might need considerable reassurance that they will be treated with compassion and their sense of dignity maintained.

Staffing issues

The KLOE also refer to the application of the Equality Act to staff, as in W1.9: How does the organisation promote equality and inclusion within its workforce? A good service will be one in which “equality and diversity are actively promoted and work is undertaken to identify the causes of any workforce inequality and action taken to address these. Staff feel they are treated equitably”. In other words, care providers must treat equality and diversity as two sides of the same coin, giving proportionate attention to the impact on their service users on the one, and their employees on the other.

For example, in its recruitment and selection, the care service must not reject people because of their perceived or known sexuality or sexual orientation. Then, if an applicant is thought to be transgender, it is important to avoid asking questions about this or any reassignment process that he or she might have undergone or be going through. Their application should be determined only on the grounds of what the person might have to offer. Once accepted their work should be determined in line with their chosen gender identity, which should then be used to address any gender preferences of service users. Any issues in following this principle should be openly addressed and discussed without the person being at risk of discrimination because of their chosen gender.

The service can support its LGBT employees by implementing the recommendations made in Unhealthy Attitudes.

  • To have a highly visible campaign that addresses all sexually-based bullying and harassment, and to encourage reporting of incidents so that appropriate actions can be taken.

  • To have anti-bullying and harassment policies that communicate a zero-tolerance approach to bullying and abuse on the grounds of sexual orientation and gender identity. The policy should include how reporting of incidents can be made so that they can be immediately and decisively acted on.

  • To fully protect employees from sexually-based bullying and abuse from service users, which should be regarded as breaches of contract, by having clear procedures to address such behaviour with termination of service as a possible consequence.

Reference

Unhealthy Attitudes: The Treatment of LGBT People Within Health and Social Care Services, Stonewall (2015), available from the Stonewall website.